People v. Briggs
668 P.2d 961
Colo. Ct. App.
1983
Check Treatment

*1 cuting attorney advantageous in an

position to use his credibility influence

the board. This was here especially true

since he played prosecutor dual role of

at the hearing level as well as that of the

board’s private counsel.

After the above exchange, petitioner’s at-

torney interjected speak briefly peti-

tioner’s behalf. He was a board stopped by

member, upon the prosecutor’s recommen-

dation that a statement by petitioner’s

counsel would be inappropriate. A board

member then asked prosecutor if his

recommendation did,

still stood. He replied that it and a

final vote was taken board.

The prosecutor’s extensive influence

upon the board’s deliberations resulted in

just the due violation the Weissman prevent. The “appearance

of impropriety vividly unfairness” is [and] ‍​‌​​‌​‌​‌​‌‌​‌‌‌​​​‌‌​​‌‌‌‌‌‌​‌​‌‌​​​‌‌‌​​​​​​​‌‍upon evidenced reviewing the transcript

the board meeting. reversed,

The order is and the cause is

remanded to the respondent Board of Edu-

cation with instructions to reinstate the pe-

titioner in his former position and to award

full back pay, including benefits. Section

22-63-117, C.R.S.1973. STERNBERG,

COYTE and JJ., concur. Colorado,

The PEOPLE of the State of

Plaintiff-Appellee, BRIGGS, Defendant-Appellant.

Paul Alan

No. 81CA0152.

Colorado Court of Appeals,

Div. III.

Feb. 1983.

Rehearing Denied March 1983.

Certiorari Aug. Granted 1983.

things, that Kirk Martin had taken some оf stolen property to Indiana. Armed with this information from the defendant, Kirk Mar- interviewed tin. Martin told tak- SCAT officers he had Gen., MacFarlane, Atty. J.D. Charles B. en some of the items to Indiana to sell to Howe, Gen., Cantrick, Joel W. Deputy Atty. Bill there. January On SCAT Gen., Phelan, Sp. Atty. Asst. Maureen Asst. officers flew to Indiana and learned from Gen., Denver, plaintiff-appellee. for Atty. Neeley that Martin and a man referred to Robinson, P.C., Gerash H. Robin- & Scott “the mountain as man” had formulated a son, Denver, defendant-appellant. for nickname). to kill “Gatоr” plan (Dewey’s On officers told Martin KELLY, Judge. they suspected that him of mur- defendant, Briggs, Paul was convict- information, der. Confronted with this degree ed of first murder. The jury the defendant on primary question appeal is whether the by identifying him “the moun- as extrajudicial Martin, R. of Kirk man,” tain and the offered immunity and the tape-recorded to Martin if he were able conversatiоn between Martin and the de- pass a polygraph poly- test. After two fendant must all suppressed be as deriva- graph given tests 10 and 11 tive evidence from the defendant’s conced- registered deceptive responses, Martin edly illegally-obtained statements or wheth- agreed to be wired for sound and to engage er the trial court corrеctly found sufficient in a recorded conversation. attenuation to dissipate the taint. Error in In the conversation of Janu- suppression rulings requires reversal 14, the defendant ary and Martin discussed and remand for a new trial. weapon the murder and its hidden location 30, 1979, On Harry Dewey’s November body. in relation to the body was found aby hunter in the moun- It is uncontrovertеd that Deckers, tains between Sedalia Colora- ‍​‌​​‌​‌​‌​‌‌​‌‌‌​​​‌‌​​‌‌‌‌‌‌​‌​‌‌​​​‌‌‌​​​​​​​‌‍during made the defendant do. Death was by gunshot caused wound illegally interviews the officers were to the head. The poliсe knew when the properly obtained and that the trial court homicide investigation began certain derivative evidence as suppressed had been of a tree.” poisonous Wong “fruits of the Sun cabin, mountain and that Dewey might States, v. United gun killed with a stolen in that Fisher, burglary. (1983). The defendant argues P.2d 922 Special Crime Attack (SCAT) Team offi- all of Kirk Martin’s statemеnts to the po- cers defendant, interviewed the who was lice, his trial and the tape-re- Dewey’s roommate, former on December corded conversation must alsо be 20. He Miranda as been from the pressed derived told that he was of burglary, illegally defendant’s obtained statements. receiving, theft and murder. At this inter- agree. view, the defendant tоld the knew that the property in Dewey’s found bear the es burden of apartment was stolen. tablishing SCAT officers rein- the evidence obtained terviewed him on January 4 and 1980. Martin was not obtained through exploita The defendant was not readvised of his illegally tion of the defendant’s rights Miranda before States, these interviews. statements. Harrison v. United Based on a promise pros- cabin, Lowe,

ecution for burglary (1968); People of the mountain Colo. divulged, among presence of an inter- vening fact-findings, circumstance is one factor quire the issues have not determining considered whether properly preserved for review. illegality causal connection between the also argue that cаse this is a is suffi- be admitted for the application es- principles primary attenuated to remove the ciently *3 poused Williams, in United States v. 622 Illinois, Brown taint. ‍​‌​​‌​‌​‌​‌‌​‌‌‌​​​‌‌​​‌‌‌‌‌‌​‌​‌‌​​​‌‌‌​​​​​​​‌‍v. 422 95 (5th F.2d 830 Cir.1980) and United v. States (1975); 45 L.Ed.2d 416 v. S.Ct. Brookins, (5th Cir.1980). 614 F.2d 1037 Gouker, 628 P.2d 149 (Colо.App.1981). it may While ultimately be the law of Colo- rado that the Here, exclusionary rule the the is not learned from defend- applied reasonable, when action is see January statement, ant’s for the first Quintero, People v. illegal that there was Indiana in activity in Eichelberger, (Colo. v. By connection with the burglary. following 1980), unable say here, we are lead, as a mat they this elicited from Martin the law, that the ter of conduct of the police identity of Bill Neeley investigation. reasonable then both Martin the de- and Using, fendаnt this Dewey’s murder. conclude, therefore, Mar incriminating Mar- information to confront tin’s extrajudicial testi trial a possible tin with prosecution, tape-recorded and his mony, сonversation police extracted with the defendant must be In suppressed. implicating defendant in the murder. conclusion, view of this it is necessary not Thus, the road from Janu- the dеfendant’s to reach the defendant’s arguments. ary statements to im- Martin’s statements The is reversed and the cause is plicating the and unin- is direct remanded for a new trial. Cecсolini, See terrupted. United States v. 435 U.S. S.Ct. 55 L.Ed.2d 268

(1978). KIRSHBAUM, J., concurs. reasoned, nevertheless, trial court J., CISE, VAN dissents. that Martin’s decision to was in his testify CISE, Judge, dissenting: VAN therefore, was, own self-interest and an in- tervеning independent act sufficient to at- dissent. respectfully Saiz, the taint. People tenuate v. 620 P.2d correctly trial refused (Colo.1980). We do not with Kirk press the witness Martin’s statements anаlysis. police, to the conversation with defendant ‍​‌​​‌​‌​‌​‌‌​‌‌‌​​​‌‌​​‌‌‌‌‌‌​‌​‌‌​​​‌‌‌​​​​​​​‌‍While it is true independent that an Briggs. intervening event may decontaminate the v. Michigan evidence, Saiz, People v. where a (1974) dispositive is witness’ decision to testify is induced Ceccolini, here. also United States v. grant prosecution, 435 U.S. compelled testimony is not such an act of in the course оf police dissipate free will as to arising taint while he was under arrest illegality. See United States charge custody rape, Scios, (D.C.Cir.1978); 590 F.2d 956 wit- the name of an alibi Tucker furnished 630 P.2d unknown to previously police. ness Tuck- People’s arguments po witness’ later statements discredited pursued night lice had an trail and independent spent er’s account as tо where he investigation the normal course of Because he had not crime. counsel, right would have the incrimi ultimately appointed disclosed advised of his evidencе were not to the nating presented Tucker’s own court, and, arguments testimony since these re- the trial but Supreme validity was not excluded. The his trial for murder. Whatever witness ruling, per- trial court’s action. of that there was and is no upheld here for suasive reason case, Tuck- In the instant different from the con- reversing much less for er, discovered as a Martin was not a witness testimony viction because the was admitted. “fruit,” result, not a and his Mar- Briggs’ January 1980 statements. we penalize police “Before we error ... involvement identity probable and his must serves a consider whether the sanction murder be- subsequent Tucker, supra. valid and useful purpose.” to the in December came known po- Whatever future dеterrent influence on Briggs. learned about they at the same time lice Briggs’ conduct the exclusion of December, Martin and Three times have, signifi- ments it would not be their re- questionеd cantly augmented by excluding the testimo- *4 Dewey. At with the deceased lationship Tucker, of as well. Fur- ny supra. Martin a camera time, having admitted ther, there was no reason tо believe that reasona- Dewey. It is belonged that had untrustworthy Martin’s was sim- testimony ultimately ble to assume that had ply Briggs because not been readvised elicited from Martin would sub- rights; reliability of his Martin’s course obtained in event in the normal any to the normal ject testing police investigation. adversary supra. trial. with Justice White’s statement in December, in statements he concedes concurring opinion admitted voluntary, this should be the of the instant case: rule burglary helped knew about the and had in this having “Miranda been applied items to Dewey move some of the stolen only to the exclusion of the defend- these admis- Briggs’ residence. Prior to statements, ant’s own I would not extend sions, given full Miranda Briggs had been testimo- prophylactic scope its to bar the warnings and ‍​‌​​‌​‌​‌​‌‌​‌‌‌​​​‌‌​​‌‌‌‌‌‌​‌​‌‌​​​‌‌‌​​​​​​​‌‍had been advised that he was persons though they of third even ny being burglary, means of admis- by have been identified by receiving, in theft and in the un- that are themselves inadmissible sions murder. In his benefits arguable der Miranda. burglary which he confessed to the after testimony by way such being prosecution offered deterring police conduct possibly therefor, Briggs told the about Mar- view, are, compel my admissions taken some of the stolen items advantages of hav- outweighed far But, sell as found testimony, not ing probative relevant and only burgla- this dealt with the coercion, actual available at thereafter ry; everything was obtained to aid in the pursuit criminal trials And, frоm further of Martin. truth.” interrogations, it was from the Martin contentions Briggs’ other Since therefrom, leads cooperation merit, are without I would affirm appeal that further evidence was obtained about of conviction. Briggs having murder and the killer.

Although Briggs had been advised back

in December that he was a murder suspect

and had been full Miranda

at that to his

ments he promised immunity had been (which promise for burglary kept), Briggs’ own at